International court opens for business under shadow of US veto

By Joshua Rozenberg, Legal Editor

12:01AM BST 01 Jul 2002

Although the United States remains implacably opposed to the idea of an international criminal court to try individuals for war crimes, 74 other countries - including all European Union members - have ratified the Rome Statute of 1998 that comes into force today.

Those countries - and any others that ratify the treaty by tomorrow - will join the Assembly of States Parties, the body that will fund and manage the International Criminal Court (ICC).

The assembly will meet in New York for the first time in September to approve the budget and procedures for electing the court's first judges, with the elections themselves scheduled for next January.

After that, a prosecutor will be elected and staff will be recruited. In practice, it will be another year before the court is able to begin its investigations.

However, today marks the start of the court's jurisdiction: individuals who commit war crimes, crimes against humanity or genocide can never again be confident of escaping justice.

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The Dutch government, which volunteered to build the ICC in The Hague, says that "situations" may be referred to the court from today.

Evidence will be registered and filed by the court's interim staff so that decisions can be taken once the court becomes operational next year.

Initially, the court and its staff will be housed in a modern building to the south of the Dutch capital.

From 2008, its permanent home will be near the northern edge of The Hague on a site currently occupied by the Dutch army, just inland from the North Sea dunes near Scheveningen.

In a perfect world, the court would have nothing to do - not because there would be no war crimes but because the ICC will step in only when national courts are unwilling or unable to act.

This "complementarity" principle, as it is called, is fundamental: a case must be declared inadmissible if a state that has jurisdiction over it is "genuinely" investigating or prosecuting it, or has done so already.

It follows that the United States could prevent its own citizens from being brought before the ICC if it investigates allegations against them itself.

That is what would happen in Britain, where the offences over which the ICC has jurisdiction are now crimes under domestic law.

Will American peacekeeping troops be liable if other countries consider their actions amount to war crimes? Under the Rome Statute, the court has jurisdiction over cases where the suspect is a national of a state party, or where the crime was committed on the territory of a state party, or where the case is referred to it by the United Nations Security Council.

The United States could veto any attempt by the UN to refer a case involving one of its citizens, so Americans would only be at risk of prosecution for crimes committed in a country that had ratified the treaty.

American diplomatic efforts have been directed towards obtaining agreements from states in which its troops might serve that they will not be surrendered for trial in The Hague.

The draft resolutions put by the United States to the UN Security Council are designed to ensure immunity from arrest, detention and prosecution for peacekeepers in every UN member state, not just the state that hosts a peacekeeping operation.

Such a resolution would be inconsistent with the Rome Treaty.

The United States has also made it clear that it will not give the ICC prosecutor any information on which to build a case.

No country can say that its troops will never find themselves on trial in The Hague. But it is a risk that 74 countries at least are prepared to take, if it is the price they must pay to deter and punish the most serious violations of international humanitarian law.